The Gazette 1991

GAZETTE

JULY/AUGUST 1991

Vital Issues of Trade Union Law

NUJ, IPU & others. Applicants, and Noel Martin Sisk

(Registrar of Friendly Societies)

and

others. Respondents, Judicial Review, High Court, 31 July, 1990, Keane, J., Supreme Court,

20 June, 1991.

Trade Union Law, especially regarding registration and mergers, is

often overshadowed within the wider area of Labour Law which

generally focuses on employment and dismissal aspects. The

importance and complexity of Trade Union registration law,

however, are apparent from a recent decision of Mr. Justice Keane

in the High Court,

" which was reversed by the Supreme Court.

Summary of Case

The Irish Print Union (IPU) wished

to transfer its engagements (in

general terms, a type of merger) to

the National Union of Journalists

(NUJ). The Registrar of Friendly

Societies is the Registrar of trade

unions for the purposes of the

Principal Act, the Trade Union Act,

1871, and also the Trade Union Act,

1975 dealing with mergers. The

Registrar's approval of relevant

documents is required before a

transfer of engagements can be

completed.

The first respondent, Mr. Noel

Martin Sisk, solicitor and current

Registrar, declined to register the

transfer of engagements. The

reason for the Registrar's decision

was that he was satisfied that the

jurisdiction of the Trade Union Act,

1975, and therefore of the

Registrar, is limited to trade unions

registered in the State. (There is an

exception, under Section 9 of the

1975 Act, to cover the other side

of the coin: Where a majority of

members of a British-based trade

union in the State and Northern

Ireland wish to merge with a trade

union registered in the State). The

NUJ was was not registered in the

State, and could not be regarded as

a trade union for the purposes of

the Trade Union Act, 1975.

The NUJ, a British-based union

operating in Ireland on a branch

basis, is not registered with the

Registrar of Friendly Societies,

Dublin. (The NUJ does, however,

have a negotiation licence granted

by the Minister for Industry and

Commerce, now Labour under the

Trade Union Act, 1941). A judicial

review of the Registrar's refusal to

register the transfer of engage-

ments was sought, together with

an order of certiorari quashing the

Registrar's decision.

Mr. Justice Keane, in the High

Court, was satisfied that the

Registrar was entirely correct in the

decision he arrived at. The Court

upheld the Registrar's decision

because there was no legislative

basis providing that a trade union

registered in the State could

amalgamate with or transfer its

engagements to one not so

registered. The learned Judge re-

jected an extra-territorial construct-

ion of the legislation and also

Anthony P. Quinn,

Barrister-at-Law,

MA , B. Comm,

FIIS,

Dip. Public Adm; A.C.I. Arb.*

arguments by Mrs. Mary Robinson,

S.C., counsel for applicants, based

on freedom of association, Article

40.6.1 (iii) of the Irish Constitution.

Comment and Legislative

Background

The Registrar's decision, as upheld

by the High Court, raises vital

points regarding trade union

registration law and the position of

British-based unions operating in

the State. The outcome of the

Registrar's decision and the High

Court review, however, seems

logical and correct having regard to

existing law on trade unions in the

Irish jurisdiction: The Trade Union

Act, 1871, a landmark Statute and

still the principal Act in the Irish

jurisdiction; some smaller amend-

ing Acts, including 1876 and 1913

and the fairly technical Trade Union

Act, 1975 on mergers by amal-

gamation (formation of new union)

and transfer of engagements

(transferor union ceases to exist

but transferee union retains its

existence). Transferor unions some-

times retain their indentity inform-

ally as a branch or section of the

transferee union.

Trade Union Act

1975 (No. 4 of

1975)

The main relevant provisions are as

follows:

Sect. 1: "Trade Union", save where

the context otherwise requires, has

the same meaning as in the Trade

Union Acts, 1871-1971.

Sect. 2 (3): Subject to the Act, a

trade union may transfer its en-

gagements to another trade union.

Sect. 3: There are strict conditions

for amalgamations or transfers of

engagement, e.g. members' voting

by secret ballot, and notification of

members re holding the ballot.

Sect. 6: The legal instrument of

amalgamation or transfer shall not

take effect before it is registered by

Registrar.

Sect. 10: The Registrar has import-

ant powers including adjudicating

on complaints by union members

regarding resolutions on amalgama-

tions or transfers of engagements.

The Registrar's power under

Sect. 10 (9), purporting to exclude

investigation of the validity of a

resolution approving an instrument

of transfer or amalgamation, in any

legal proceedings except those

Anthony P. Quinn

239